Domestic Violence Disclosure Scheme

The Secretary
Queensland Law Reform Commission

Domestic Violence Disclosure Scheme Review

Domestic and family violence is an ongoing scourge in our community. We do not think it necessary to repeat what is already well-known about the level of family and domestic violence and the harm that it does. These statistics are in any event, well summarised in the discussion paper.

However from a Civil Liberties point of view whilst the prevention of harm is a necessary condition for government to take action it is not a sufficient condition.

ln taking action to protect members of the community from harm, the state has to have regard to the
rights and liberties of other individuals. ln particular, before interfering with the rights and liberties of others it is that fundamental that the State demonstrates that the proposed measure will be effective at protecting the members of the community it is intended to protect.

The proposal under discussion is a domestic violence disclosure scheme. The model scheme that in
England and wales, has two elements-the right to ask and the right to know.

ln the first case a person can apply to the police for information about whether another person has a
history of domestic violence. ln the second case the police actively disclose information in order to
protect high risk victims

The theory behind this proposal is, obviously, that people provided with this information will take action to protect themselves, presumably most often by removing themselves from the relationship.

It is common in our society to think that the most effective way to solve social problems is to supply
information to those adversely effected. This approach clearly has its origins in contemporary economic theory. In the assumptions of neoclassical economics for example, full information allows markets to function perfectly. Citizens are supposedly empowered by access to information, just as buyers and sellers are empowered in the marketplace.

Whilst it is undeniable that information is essential to people taking action in any circumstance, it is not often sufficient. The focus on the delivery of information ignores other factors affecting people's capacity to take action including power relationships, lack of resources and inequality. ln other words, the disclosure cannot possibly work if it is not done in the context of other arrangements to allow people access to the resources and support necessary to act on the information they are given.

Practical Considerations

Before turning to issues of principle, we draw your attention to certain practical considerations. Some were identified in an article in The Conversation by Kate Fitz-Gibbon and Sandra Walklate:

1. to be accurate any scheme must require the disclosure of histories of domestic violence in other
jurisdictions.
2. how will the risks of providing women with inaccurate information be mitigated?
3. research from Queensland indicates that partners frequently seek protection orders against one
another. The only way then to accurately inform the applicant would be to provide them with
information about both parties. This would involve the disclosure of potentially deeply personal
information about an entirely irrelevant individual.
4. in many cases people who use violence as self-defence are also arrested or charged. ls this
information also to be disclosed?
5. They argue that this proposal shifts responsibility, asking individuals to vet their partners and
thereby taking responsibility from the potential partner.

There is a risk that police will become less likely to intervene to protect a person who has been
supplied information, the police taking the view that they should've looked after themselves and
left. It is a common experience in cases of applications for domestic violence that those orders are made by consent without admission of liability. If those orders might be disclosed it will inevitably result in more contested hearings.

This points to a general concern about whether this proposal will divert police resources from dealing directly with complaints of domestic violence

Some domestic violent offenders are "repeat offenders", but many are not. Some recent examples in
the media demonstrate this. This register will be of little use, in those cases, and may create a false
sense of security.

It also seems trite to say that the level of emotion in breakups might see many people make allegations of domestic violence, so that a partner is placed on the list and their prospects of entering relationships in the future are diminished.

ln this regard, what is to stop dating sites in the future, requiring members to produce their domestic
violence history? Given the number of people who meet in this manner,that could have serious
implications.

Considerations of Principle

To be weighed against the right of the victims of violence to be protected from that are the rights of the individuals whose information is to be released

We would identify three rights:

1 in our view, in a society committed to liberty, individuals must be presumed harmless. This
presumption does not come to an end simply because a person has been convicted of an
offence.

2 the interest of the community in the successful rehabilitation of individuals who have been
convicted of violent offences.

3. the right to privacy

Whilst these rights and interests do not rise to the same level as a liberty interest, they are in our
submission significant rights and interests which need to be weighed in this process.

We would submit that the key to approaching this proposal is the right to privacy.

First, it is important to appreciate that the right to privacy does not simply apply to information that is not in the public domain. In contemporary times one of the most critical aspects of privacy is information privacy

As the discussion paper shows, what we are considering here is some information which is not in the public domain-such as the records of domestic violence order applications. On the other hand there will be the records of convictions, most of which will be in the public domain.

Information privacy comes into play because it is proposed to collect this information and make it more easily accessible. As the paper points out, it might be possible currently to get access to some of this information but doing so would be difficult and expensive.

As the discussion paper says, under current Right to Information legislation personal information can be accessed where the disclosure "is necessary to prevent a serious threat to the life, health, safety and welfare of an individual."

Our preferred formulation of that principle is a 'serious and imminent threat to an individual's welfare'

QCCL submits this privacy principle provides an appropriate basis for assessing this proposal.

Paragraphs 9 and 10 of the discussion paper make it clear that there currently is no evidence
demonstrating that this measure will be effective in reducing the amount of domestic violence or in
protecting potential victims of domestic violence. So our starting point is that having regard to the other rights and interests set out above, this proposal should not proceed in the absence of concrete evidence that it will be effective in protecting potential victims.

Even then, the level of benefit demonstrated would have to outweigh the sort of harms, listed above,
which might flow from the introduction of the scheme.

Certainly, as we have noted above the scheme will require extra funding to provide assistance to people to whom information is disclosed to ensure that they can act on it effectively.

Answers to Questions posed

In case the Commission recommends that a scheme be implemented, we make the following submission about the principles that should be applied in the construction of the scheme.

Once again, whilst we are not talking about depriving somebody of their liberty, it is our view that the scheme has to be developed in a way which is narrowly tailored to achieve the desired result and at the same time protect the rights and interests which we have identified.

As a result, we set out our answers to the questions which fall within our remit, having regard to this principle.

Q-9 - Should the scheme be legislated for?

The scheme should legislated for. This scheme should not be implemented by an administrative
arrangement. lt raises issues that should be considered by Parliament.

Q-10 - What entity should administer a DVDS? If it is an existing entity, which entity is it? If it is
a multi-agency entity, please outline which agencies should be included and how it might
operate.

This proposal raises complex psychological, sociological and economic issues. Decisions should be
made a multi-disciplinary committee including police.

Q-If - Who should be eligible to apply for information under a DVDS? Should the eligible
applicants under a DVDS be limited to people in an intimate personal relationship, or also
include people in a family or informal care relationship?

Only those involved in a relationship with the subject of the request or someone specifically authorised by them.

Q-12 - Should a DVDS also be available to people who were in, but who are no longer in, an
intimate personal relationship (or other relevant relationship for the scheme)?

No. Once the relationship has ended the rationale for the disclosure also ends.

Q-13 - Should a DVDS permit a third party to make an application on behalf of a person who may
be at risk? In what circumstances should this occur?

See above

Q-16 - Should a DVDS provide for information to be disclosed, without an application, to a
person who may be at risk (that is, a 'right to know' or 'power to tell' pathway)? In what
circumstances should this occur?

No. For at least 2 reasons. Firstly, to allow the release of information only when it is requested by a
person meets the need to narrowly tailor the scheme. Secondly, if the scheme rests on the person
taking action as a result of the disclosure, it is difficult to see how that is going to happen if they have not been motivated enough to request information.

Q-17 - Which offences should be covered under a DVDS, and how should those offences be
identified or defined? For example, a DVDS could apply broadly to 'domestic violence offences',
or to certain types of offences (such as 'violent' offences) or to a defined list of specific offences.

Specific serious violent offences committed in the context of an intimate personal relationship as defined in the Domestic and Family Violence Protection Act 2012. By serious we mean ones in which the offender was liable to 5 years imprisonment or more.

Q-18 - Should disclosure under a DVDS be limited to events that occurred in the context of some or all of the relevant relationships to which the Domestic and Family Violence Protection Act
2012 applies (namely, intimate personal, family or informal care relationships)? How could this
be achieved?

An intimate relationship as defined in the Domestic and Family Violence Protection Act 2012

Q-19 Should a DVDS permit disclosure of convictions only, or also permit disclosure of charges that did not result in a conviction, and/or other circumstances (for example, complaints, arrests or
police investigations)?

Convictions only. If this information is to be disclosed it should only be where the allegations have been proven- not mere untested allegations.

Q-20 - Should a DVDS permit the disclosure of convictions: (a) where no conviction was formally recorded by a court? No (b) that have become spent convictions? No (c) that were imposed on a person as a child? No (d) that were imposed other than under Queensland law? Yes

There should be no disclosure in cases a, b and c. ln general terms in those cases the law says those
convictions need not be disclosed. We oppose the continual whittling away of that position.

Q-21 - Should the information that can be disclosed under a DVDS be limited to the fact that a
disclosable matter exists (for example, for a conviction, the offence and the date on which it
occurred), or also include other relevant information about that matter (for example, the
relationship between the subject person and victim, or details about the offence and sentencing
details)? lf the disclosure includes other relevant information, what particular information
should be able to be disclosed? To what extent should this be determined on a case-by-case
basis?

To some extent the answer to this question must be empirical and will have be answered on a case by case basis. But it is difficult to see how the scheme can work effectively if no more than the mere fact of a conviction is disclosed.

Q'22 'Should a DVDS also permit disclosure of civil orders, notices or other actions made or
taken under the Domestic and Family Violence Protection Act 2012?

No, essentially for the reasons set out above - many of these orders have been made for pragmatic
reasons.

Criteria for a decision to make a disclosure under a DVDS

Q-23 - What factors, principles or test should guide a decision about whether to make a
disclosure under a DVDS?

The key principle must be that there needs to evidence upon which the decision makers can be satisfied that the disclosure of the information to the applicant will allow them to avoid serious domestic violence. Furthermore that both the applicant and the subject will have available to them adequate support and assistance.

Q-29 - In what circumstances should a third party receive a disclosure or a non-disctosure?

Only those acting specifically on behalf of a person having the specified relationship to the subject.

Q-30 - When a disclosure or a non-disclosure is given, what support and services (such as safety
planning) should be provided or offered to the person at risk and/or any third party?

As we have noted above for this scheme to be effective extensive support will be needed

Q-31- When an application does not result in a disclosure, should an applicant: (a) have access to review processes; and/or (b) be able to make a subsequent application about the subject?

As a matter of principle all decisions should be appealable. ln this case the issues involved in our
submission point to the Magistrate's Court with its relevant experience as the appropriate appellate
body.

Q-32 - When an application for disclosure is made, should the subject: (a) be advised of the application and given the opportunity to make submissions about whether a disclosure of their personal information should be made; (b) be advised of a resultant disclosure of their personal information; and/or; (c) be considered for referral to appropriate support, for example, a perpetrator intervention program?

It is a fundamental principle that a person is entitled to know when their personal information is disclosed However, in this case we would accept that can deferred while it is considered that disclosure would expose the subject to imminent danger. Deferral for longer than 2 years should require approval of the Information Commissioner.

Q-33 - What legal protections should be afforded to a decision-maker under a DVDS (for example,
protection from civil liability for acts or omissions done honestly and without negligence)?

It has always been our position that decision makers should not be granted any immunity outside the common law which adequately delineates the circumstances of liability.

Privacy and confidentiality

Q-34 - Should a DVDS include specific confidentiality requirements that apply to a person to
whom information is disclosed?

Yes as per paragraph 127 of the discussion paper.

Q-35 - Should a DVDS include offences for unlawfully disclosing, or improperly obtaining,
information under the scheme

Yes for breach of the undertaking given as per the previous answer.

17/2/2017